BVA9513522
DOCKET NO. 93-19 341 ) DATE
)
)
On appeal from the decision of the
Department of Veterans Affairs Regional Office in
Indianapolis, Indiana
THE ISSUE
Whether the veteran’s income is excessive for purposes of
entitlement to Department of Veterans Affairs (VA) improved
disability pension benefits.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Darryl A. Joe, Associate Counsel
INTRODUCTION
The veteran had active military service from April 1968 to
April 1970.
Nonservice-connected disability pension benefits were first
granted to the veteran, effective in January 1976.
Thereafter, in June 1981, the veteran elected to receive
improved disability pension benefits. He was paid pension to
include additional benefits due to his need for the regular
aid and attendance of another. However, several years later,
in September 1989, the Indianapolis, Indiana Regional Office
(RO) terminated the veteran’s pension benefits, after it was
learned that he had returned to employment, on the ground
that he was no longer permanently and totally disabled. That
action became effective in January 1990. The determination
was upheld by a December 1990 Board of Veterans’ Appeals
(Board) decision. The record shows that the veteran reopened
his claim for improved disability pension benefits in early
1991.
The instant matter came before the Board on appeal from a
December 1992 determination by the RO, denying nonservice-
connected disability pension benefits to the veteran due to
excessive income. The veteran was notified of the RO’s
decision by correspondence dated in January 1993.
The veteran, on a number of occasions, has reported
sustaining a head injury in service, resulting in a scar and
possibly headaches. It is unclear whether he is seeking
entitlement to service connection for such disorder.
However, such claim has not been developed for appellate
review and is referred to the RO for necessary action.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends, essentially, that his income for 1991
and 1992 did not exceed the applicable maximum annual limits
for pension purposes. He petitions the VA for financial
assistance in order to meet his expenses, including rent,
utilities, and medication.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991), has reviewed and considered all of the
evidence and material of record in the veteran's claims file.
Based on its review of the relevant evidence in this matter,
and for the following reasons and bases, it is the decision
of the Board that the preponderance of the evidence is
against the veteran’s claim for entitlement to disability
pension benefits, due to his excessive income for the years
1991 and 1992.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran’s claim has been obtained by the
RO.
2. The veteran was awarded nonservice-connected disability
pension benefits effective January 1, 1976. These benefits
were terminated by the RO in January 1990, based on the
finding that the veteran was no longer permanently and
totally disabled.
3. The veteran reopened his pension claim in March 1991.
4. The veteran’s countable annual income in 1991 was $9,343;
his countable annual income in 1992 was $9,646.
5. The maximum annual rate of improved pension for a veteran
with no dependents was $7,133, effective December 1, 1990,
and $7,397, effective December 1, 1991.
6. The veteran’s income of $9,343 in 1991 and $9,646 in 1992
exceeded the applicable income limitations, even after
consideration of unreimbursed medical expenses, for a veteran
with no dependents, based on the improved pension rates
effective in December 1990 and December 1991.
CONCLUSION OF LAW
The veteran’s annual income exceeded the statutory maximum
annual income limitations for a veteran with no dependents
for the annualization periods beginning in 1991 and 1992.
38 U.S.C.A. §§ 1521, 5107 (West 1991); 38 C.F.R.
§§ 3.3(a)(3), 3.23, 3.271, 3.272 (1994).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Initially, we have determined that the veteran’s claim is
well-grounded within the meaning of 38 U.S.C.A. § 5107(a).
That is, we find that he has presented a claim which is
plausible. Additionally, we find that the RO has obtained
all relevant evidence in regard to his claim and that no
further assistance to the veteran is required to comply with
the duty to assist him, as mandated by 38 U.S.C.A. § 5107(a).
The record in this case shows that in March 1991, the RO
acknowledged the veteran’s reopened claim for nonservice-
connected disability pension benefits. In April 1991, the RO
received the veteran’s income-net worth and employment
statement, wherein the veteran reported that he had a son,
Robert, who neither lived with nor received financial support
from the veteran. Providing information regarding his income
history, the veteran also reported that his annual salary of
$815 in 1989 was the highest salary he had ever earned. He
further noted that he expected to earn $377.24 in total
salary for the 12 month period subsequent to the date on
which his claim for pension benefits was filed with VA.
In October 1992, responding to the RO’s request for
additional income information, the veteran submitted a copy
of a paycheck, dated June 16, 1992, in the amount of $123.50,
and statements of earnings and deductions for pay periods
February 22, 1992 to March 6, 1992, and April 18, 1992 to May
1, 1992. Also received in October 1992 was an eligibility
verification report (EVR). In that report, the veteran
indicated that he did not receive or expect to receive any
income from any source, including wages from employment. He
also noted that he incurred $189.00 in unreimbursed medical
expenses during the period May 1992 through July 1992.
As previously noted, the RO denied the veteran’s claim for
nonservice-connected pension due to excessive income in
December 1992. He was advised of the RO’s action by letter
dated in January 1993. In that correspondence the RO
explained that the veteran’s income of $12,272, exceeded the
maximum annual pension limit of $7,619. It was further
explained that the veteran’s total income was derived by
multiplying his hourly wage ($5.90), as reflected on his most
recent wage and earnings statement, by 40 hours, and then
multiplying that figure by 52 weeks.
In February 1993, the veteran submitted tax information for
years 1991 and 1992. The Form W2 Wage and Tax Statement for
1991 demonstrates that he earned $9,343.84 while working for
Wal-Mart Stores, Incorporated. The veteran’s W2 statements
for 1992 indicate combined earnings during that year of
$9,646.65, with $8,737.16 due to wages earned from Wal-Mart
and $909.49 derived from disability insurance proceeds. Also
received in February 1993 was a report of medical expenses in
the amount of $884.87, covering the period December 1991
through December 1992, as well as another EVR. In the EVR,
the veteran responded in the affirmative to the question
asking if he had worked at any time during the 12 months
preceding the filing of the EVR. However, he went on to
report that he did not receive or expect to receive any
income from any source, including wages from employment.
In a May 1993 letter to the veteran, the RO advised him that
the tax information submitted in support of his claim
demonstrated that his income for 1991 and 1992 exceeded the
maximum income amounts that could be earned by a veteran with
no dependents during those respective years. He was further
informed that due consideration had been given to his
unreimbursed medical expenses incurred during 1992, but that
the amount reported was insufficient to reduce his income for
that year to a level below the maximum allowable limit.
Although the RO acknowledged that the statutory income limits
are higher for veterans with dependents, it noted that the
evidence of record reflected that such limits were not
applicable in the veteran’s case, since he did not have
custody of his son nor did he contribute to the son’s
support.
Later in May 1993, the veteran submitted information
pertaining to the medical expenses paid out during the period
from May 1991 through April 1993. These figures reflect that
he paid $368 from May 1991 through December 1991, $884 from
January 1992 through December 1992, and $715 from January
1993 through April 1993.
Among the factors which must be addressed in order to
establish a veteran’s basic eligibility to VA improved
disability pension benefits, is whether that veteran’s annual
income exceeds the applicable maximum annual pension rate for
the annualization period in question. In this regard, the
veteran is advised that he is not considered to be
permanently and totally disabled, on the basis of the record
currently available to the Board. However, our determination
in this case is limited solely to the question of whether his
income is excessive for pension receipt, without regard to
disability. For the purpose of computing income for
disability pension benefits, payments of any kind from any
source shall be counted as income during the 12-month
annualization period in which received, unless specifically
excluded. 38 C.F.R. §§ 3.271, 3.272. The veteran’s wage
income for 1991 and 1992, as well as the insurance proceeds
from 1992, are clearly countable as income for improved
disability pension purposes under 38 C.F.R. § 3.271.
Unreimbursed medical expenses will be excluded from the
computation of income when they are in excess of five percent
of the applicable maximum pension rate in effect during the
12-month annualization period in which the medical expenses
were paid. 38 C.F.R. § 3.272(g).
The tax information of record shows that the veteran received
$9,343.84 in wage income for 1991. The veteran also reported
unreimbursed medical expenses of $368.93 during that
annualization period. This sum exceeds five percent of the
maximum annual pension rate for 1991, $7133, by $12.28
($7133 x .05= $356.65; $368.93 - $356.65= $12.28).
Therefore, the veteran may deduct $12.28 from his annual
income amount of $9,343.84, leaving $9331.56. This is
clearly in excess of the maximum annual rate at which
improved pension disability benefits may be paid to a veteran
with no dependents for calendar year 1991. Following
application of the above formula to the figures reported by
the veteran for 1992, we also conclude that the unreimbursed
medical expenses for 1992 are not in an amount which would
reduce the veteran’s annual income to within the limits
prescribed for that year ($7,377.00). Hence, the Board finds
that the veteran’s rate of income for 1991 and 1992 did not
permit payment of pension based upon the maximum rates of
pension in effect during the respective periods, and concurs
with the RO’s finding that the veteran was not entitled to
improved disability pension benefits for 1991 or 1992 due to
excessive countable income.
The Board acknowledges the veteran’s statements regarding his
dire financial straits, which, he apparently believes, would
be greatly improved by reinstatement of his pension
disability benefits. While we are sympathetic to the
veteran’s circumstances, we must nevertheless point out that
the Board has no authority to ignore the governing law and VA
regulations. The governing criteria in this regard are
explicit: if a veteran’s annual countable income exceeds the
maximum annual income limitations for improved pension
benefits, with consideration given to unreimbursed medical
expenses incurred during the annualization period at issue,
entitlement to such benefits may not be established.
Consequently, no viable, legal option is available to the
Board at this time but to deny the veteran’s claim.
ORDER
The appeal is denied.
N. R. ROBIN
Member, Board of Veterans' Appeals
(CONTINUED ON NEXT PAGE)
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting
less than the complete benefit, or benefits, sought on appeal
is appealable to the United States Court of Veterans Appeals
within 120 days from the date of mailing of notice of the
decision, provided that a Notice of Disagreement concerning
an issue which was before the Board was filed with the agency
of original jurisdiction on or after November 18, 1988.
Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402
(1988). The date which appears on the face of this decision
constitutes the date of mailing and the copy of this decision
which you have received is your notice of the action taken on
your appeal by the Board of Veterans' Appeals.